Wythe's Lost Papers

1807

Ritchie to Governor William Cabell, April 25, 1807

THOMAS RITCHIE TO THE GOVERNOR.

The accompanying valuable papers were (last year) put into my possession by Major DuVall (acting Executive of Mr. Wythe), and I was by him requested to have them deposited among the archives of the Council. I do myself the peculiar pleasure of transmitting them to you for this purpose.

I am, &c.

[The above-mentioned papers were not found.-ED.]

Calendar of Virginia State Papers, IX, 511

1810

Jefferson-Tyler correspondence

Judge Roane is Spencer Roane, a former student of Wythe's, and Thomas Ritchie's cousin.

Richmond, Nov. 12, 1810

Dear Sir,

Perhaps Mr. Ritchie, before this time, has informed you of his having possession of Mr. Wythe's manuscript lectures delivered at William and Mary College while he was professor of law and politics at that place. They are highly worthy of publication, and but for the delicacy of sentiment and the remarkably modest and unassuming character of that valuable and virtuous citizen, they would have made their way in the world before this. It is a pity they should be lost to society, and such a monument of his memory be neglected. As you are entitled to it by his will (I am informed), as composing a part of his library, could you not find leisure time enough to examine it and supply some omissions which now and then are met with, I suppose from accident, or from not having time to correct and improve the whole as he intended?

Judge Roane has read them, or most of them, and is highly pleased with them, thinks they will be very valuable, there being so much of his own sound reasoning upon great principles, and not a mere servile copy of Blackstone and other British commentators,—a good many of his own thoughts on our constitutions and the necessary changes they have begotten, with that spirit of freedom which always marked his opinions.

I have not had an opportunity of reading them, which I would have done with great delight, but these remarks are made from Judge Roane's account of them to me, who seemed to think, as I do, that you alone should have the sole dominion over them, and should send them to posterity under your patronage.

It will afford a lasting evidence to the world, among much other, of your remembrance of the man who was always dear to you and his country. I do not see why an American Aristides should not be known to future ages. Had he been a vain egoist his sentiments would have been often seen on paper; and perhaps he erred in this respect, as the good and great should always leave their precepts and opinions for the benefit of mankind.

Mr. Wm. Crane gave it to Mr. Ritchie, who I suppose got it from Mr. Duval, who always had access to Mr. Wythe's library, and was much in his confidence.

I hope you are quite as happy as mortality is susceptible of, though not quite dissolved; and that you may remain so for many years, is the sincere wish of your most obedient humble servant.

Jn. Tyler

1890

Worthington C. Ford, Nation, August 7, 1890

Ford discovers two manuscript drafts of the Virginia Constitution near Lexington, Virginia.

1892

Kate Mason Rowland, A Lost Paper of Thomas Jefferson, July, 1892

Text of the Ford manuscript published.

1916

Anderson, Jefferson and the Virginia Constitution

Suggestion to compare Ford manuscript with The Enquirer text.

1950

The Papers of Thomas Jefferson

Julian P. Boyd's notes on Jefferson's manuscript draft of the Virginia Constitution (p. 364-365):

Dft (NN). This copy of TJ's constitution was folded and docketed in correct legislative form. At the top of the two sheets, after it was folded, TJ endorsed this title on his substantive law: "A Bill for new modelling the form of government, & for establishing the fundamental principles thereof in future." Below this, he added: "It is proposed that this bill, after correction by the Convention, shall be referred by them to the people to be assembled in their respective counties and that the suffrages of two thirds of the counties shall be requisite to establish it."

The provenance of this text is given in a memorandum of Victor H. Paltsits (Ford Papers, NN, 1 Feb. 1916): the document was acquired from Cassius F. Lee, Jr., of Alexandria, by "William Evarts Benjamin, then a well-known dealer of New York City who acted in the matter for some woman whose name is not revealed." Alexander Maitland purchased it of Benjamin for the Lenox Library. Shortly after this text was brought to light in 1890, efforts were made to identify it as the copy that TJ had given to George Wythe to convey to the Virginia Convention (D. R. Anderson, "Jefferson and the Va. Const.," Amer. Hist. Rev., XXI [1915-1916], 751). A close comparison of the copy found among Wythe's papers at his death in 1806 and printed with meticulous accuracy in the Richmond Enquirer, 20 June 1806, clearly establishes the identity of that copy and the one now in the New York Public Library, here designated as the Third Draft (Boyd, Declaration of Independence, 1945, p. 44-5). In 1825 TJ wrote: "I ... drew a sketch or outline of a Constitution, with a preamble, which I sent to Mr. Pendleton, president of the convention .... He informed me afterwards by letter, that he received it on the day on which the Committee of the whole had reported to the House the plan they had agreed to ... " (TJ to Augustus B. Woodward, 3 Apr. 1825). It has been assumed that this was a mistake of memory on TJ's part and that he confused Pendleton with Wythe (Hazelton, p. 451). Wythe reported to TJ that "the one you put into my hands was shewn [italics supplied]" to those chiefly engaged in framing the Constitution (Wythe to TJ, 27 July 1776). This, together with the significant fact that Wythe's copy remained among his papers, indicates that TJ was correct in saying he had sent a copy to Pendleton. If so, this would tend to confirm the supposition advanced in the notes to the Second Draft that two copies were sent. Wirt indicates that the copy he saw in the State archives was the one "forwarded •.. to Mr. Wythe"; however, he also describes it as "an original rough draught," a description which scarcely fits the Wythe copy or Third Draft (Wirt, Henry, I, 1 9 6). Moreover, if Wythe's copy had been used by the Convention as the text from which several parts were taken for incorporation in the Constitution adopted by that body, it seems very likely that some corrections or markings on the MS of the text would have been made to indicate what parts had been selected, how they had been altered, s.c. (see Conv. Jour., May 1776, 1816 edn., p. 78, for 28 June, when it was ordered that "the said plan of government, together with the amendments, be fairly transcribed" [italics supplied]). No such alterations or markings appear on the Third Draft.

¹ MS torn; text supplied from the precisely correct and literal text printed in the Richmond Enquirer, 20 June 1806.

² A word must have been omitted by TJ at this point; elsewhere in the document the comparable phrase is employed: e.g., "incapable of holding any public pension ... ," not "incapable of any pension." The fact is that at this point in the Second Draft TJ wrote: "incapable of being again appointed to the same"; then struck out the words "being again appointed to"; then interlined "holding," making the phrase read as he usually wrote it "incapable of holding the same." However, the word "holding" appears also to have had a line drawn through it, though it also bears evidence of the slight smudge that TJ occasionally made in his rough drafts, as if he had run his finger over a freshly drawn line or word to expunge it. At all events, it is certain that "incapable of holding" is what he normally would have written and it is equally certain that "holding" was interlined though perhaps lined out. The point is worth noting since both the text of the Third Draft and the text of the Enquirer omit the word "holding" at this point, thus adding to the preponderant evidence that they are identical.

³ The square brackets here and below in the text are in the MS.

⁴ The words in italics were struck out, and then TJ interlined the following words at the top of the same page of MS: "nor shall there be power any where to pardon or to remit fines or punishments." This clause was finally inserted in the next to the last paragraph under "1. Legislative," above.

⁵ The six lines in the MS beginning with the words "by an act of the legislature" down to and including "defined by the legislature, and for" are written on a slip of paper pasted on the MS at this point. This represents a curious omission made by TJ in copying, an omission that seems inexplicable except on the ground that the Third Draft (Wythe's copy in NN) was copied not from the Second Draft (DLC) but from another text. As originally copied in the Third Draft, TJ caused this passage to read in part, without a break in the lines, "for breach of which they shall be remove able [end of line] the punishment of which the said legislature shall have previously prescribed certain and determinate pains. ... " The First Draft includes in rough, interlined form the six lines thus omitted at the end of the line "they shall be removeable," but in the Second Draft this passage comprises four and a half lines at the bottom of page 7 and two and a half lines at the top of page 8. It is conceivable that TJ could have accidentally skipped such a passage if it had ended at the bottom of a page or if its beginning and end coincided with the beginning and end of a line. But it is difficult to believe that he could have made this error if he had been copying from a text where the passage began in the middle of the line near the bottom of one page and ended in the middle of the line near the top of another, particularly in a case where the omission involved such a sharp break in the continuity and sense. The evidence in this instance alone is not conclusive, but taken in connection with TJ's remarks in 1825, with the statements of Wirt and Leigh as cited in notes to the Second Draft, and other evidences given in these notes, it seems certain that the Third Draft was copied from another fair copy made from the Second Draft. At all events, the omission of this passage conclusively proves that the Third Draft is the copy that George Wythe carried to Virginia, for the Richmond Enquirer printed the six lines written on the slip of paper, but neglected to include the lines written underneath. This typographical error obviously could have occurred only in the use of the copy now in NN, which, therefore, is the copy transmitted by Wythe.

1983

===Kirtland, "What Has Become of George Wythe's Papers?" (Appendix A, George Wythe: Lawyer, Revolutionary, Judge,) p. 298-299

It is intriguing but apparently idle to speculate on the possibility that a substantial corpus of Wythe papers may survive to the present day.

Wythe may not, in fact, have kept extensive files. Few men of his era shared Jefferson's conspicuous sense of the future and of their importance to it. It was Jefferson, indeed, who remarked to Tyler that he had been surprised to learn of the existence of Wythe's manuscript lecture notes, since "he might have destroyed them, as I expect he has done [to] a very great number of instructive arguments delivered at the bar, and often written at full length. ,,1

Apart from small bequests and the establishment of a trust to provide for Lydia Broadnax, Wythe's entire estate went to the brother and two sisters of George Wythe Sweeney: Charles A., Ann, and Jane Sweeney. Charles and Jane were minors (Holder Hudgins of Mathews County, the ultimate purchaser of Chesterville, was their guardian) as late as November, 1808, and before that date (by which time she had married John Cary, and seems to have been living in Henrico County), Ann may have been under Hudgins's guardianship, too.2

1 Jefferson to John Tyler, 25 Nov. 1810, in answer to Tyler's letter cited above, Chapter I, note 9: DLC, Jefferson Papers, 191:34037.

2 The Wythe heirs and their guardian can be traced back, in part, through Abraham Warwick, who owned the Wythe Richmond homesite in the

There is no evidence that these grandchildren of Wythe's sister, Ann, were living with their great-uncle, like their brother, George, at the time of Wythe's death. If they knew of his papers, they apparently had no interest in or appreciation of them. Governor Tyler suggests to Jefferson, in the letter cited above (Chapter I, note 9), that perhaps the latter was entitled to the manuscript of the lectures by reason of the bequest of Wythe's library (Would that Jefferson had overcome his scrupulous regard for the exact terms of the bequest! Had he, the manuscript might have survived. Jefferson's conscience in this regard is in stark contrast with the uncertainties of Tyler! who though a lawyer and later a judge could say, four years after Wythe's death, "You are entitled to [the manuscript] by his will (as I am informed)"!).

Moreover, there is in the executive papers of Virginia a letter written by Thomas Ritchie to Governor William H. Cabell, dated 27 April 1807, covering certain "valuable papers" that had come into the editor's possession through "Major Duvall (acting Executive of Mr. Wythe)" and were, at the latter's request, to be deposited in the State archives.3 There can be little question that these papers, otherwise undescribed, had come from Wythe's files. There is no trace of them today, nor was there when the archives were calendared at the end of the last century.

1850's; see Richmond City Hustings Deeds, Book 21, p. 570, and Book 3l, p. 385; Henrico Court Order Book #16, p. 223: #14, p. 162; and Henrico Court Minute Book, 1823-1825, pp. 269, 279, all in Vi.

For the information on Hudgins's purchase of Chesterville, I can cite only a newspaper article from the Daily Press of Newport News, Hampton, and Warwick, 31 May 1953, section D, p. I, purporting to give the family tradition of Col. Robert Hudgins, a descendant of Holder and the last private owner of Chesterville; see Appendix B.

3 Calendar of Virginia State Papers, IX, 511.